Acceptance by the persons or entity to whom this price quotation and these terms and conditions of said price quotation are addressed (hereinafter “buyer” must be in exact compliance with these terms and conditions herein. this price quotation constitutes an offer by AmpAway Inc. (hereinafter “seller” or “Ampaway”) and shall not be construed as an acceptance of any offer made by the buyer. When the buyer accepts this price quotation, either by purchase order, commencement of performance, or by acceptance of any items contained in the price quotation, it shall be a binding contract (“contract”). This price quotation is limited to and expressly conditional upon the buyer’s acceptance of the terms and conditions specified in this document and any attachments made by Ampaway. Ampaway does not agree and expressly rejects any proposed addition, alteration, or deletion by the buyer. These terms and conditions can be varied only by a written signed by the buyer and Ampaway. Any other statement or writing of the buyer shall not alter, add to, or otherwise affect these terms and conditions. an electronic mail is not writing.
All sales are made at F.O.B. Ampaway’s designated shipping point; freight is collected or pre-paid and added. Subject to Ampaway’s right of stoppage in transit, delivery of Products to a carrier at the shipping point in good condition or delivery by Ampaway to Buyer’s representative at Ampaway’s warehouse or plant shall constitute delivery to Buyer, and risk of loss shall thereupon pass to Buyer. Immediately upon Ampaway’s delivery of the Products to a carrier, the Products will be conclusively, irrevocably, and expressly deemed to be accepted by Buyer. Ampaway shall have no liability for any events occurring during shipment or thereafter and any claim for damages or loss must be filed with the carrier. Delivery of any installment of Products within thirty (30) days after the date specified therefore shall constitute a timely delivery. Thereafter, delivery shall be deemed timely unless Ampaway receives written notice of cancellation before shipment. Immediately upon Buyer’s receipt of any Products shipped hereunder, Buyer shall inspect same and shall promptly notify Ampaway in writing of any claims for shortages, defects, or damages and shall hold the Products for Ampaway’s written instructions concerning disposition.
Buyer shall not assign, transfer, subcontract or delegate this Price Quotation or any right or obligation hereunder, or any part thereof, including the accounts payable without the written consent of Ampaway. Any assignment without Ampaway’s written consent shall be void and have no binding effect upon Ampaway. No subcontract entered into by Buyer shall relieve Buyer of any of its liabilities and/or obligations.
Unless otherwise specified, the prices set forth in this Price Quotation exclude all applicable federal, state, and local taxes. All such taxes shall be stated separately on Ampaway’s invoice.
F.O.B. Unless otherwise specified, shipment will be made F.O.B. Ampaway’s designated plant or plants.
Partial or complete delivery may be made before the date or dates shown. In the absence of specific shipping instructions, Ampaway shall select a carrier who shall be deemed to act as Buyer’s agent, not withstanding any payment by Ampaway of freight charges made for Buyer’s account. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to the Buyer. Ampaway shall not be obligated to obtain insurance against damage to Products being shipped, and unless otherwise specifically agreed in writing between Buyer and Ampaway, all Products will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Ampaway, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. All shipping dates are approximate and Ampaway may change the delivery date without penalty, provided Ampaway provides Buyer with reasonable notice of such change. Ampaway shall not be responsible for any failure to perform or delay in performing which is directly or indirectly due to any governmental or military regulation or requirement, the act of God, war, riot, embargo, fire, flood, natural disaster, strike or other labor dispute, unavailability of materials or transportation facilities, or any other unforeseen circumstances or causes beyond Ampaway’s control. Any affected delivery date shall be deemed extended for a period of time at least equal to the delay incurred
The Buyer must not, without the express written approval of Ampaway, at any time, make changes to this Price Quotation. If any such change causes an increase or decrease in the cost of, or the time required for the performance of this Price Quotation, an equitable adjustment shall be made in the Price Quotation price or delivery schedule, or both, and the Price Quotation shall be modified in writing accordingly.
The Buyer must not, without the express written approval of Ampaway, at any time, make changes to this Price Quotation. If any such change causes an increase or decrease in the cost of, or the time required for the performance of this Price Quotation, an equitable adjustment shall be made in the Price Quotation price or delivery schedule, or both, and the Price Quotation shall be modified in writing accordingly.
Actions Against Buyer. Ampaway will defend at its own expense any suit brought against Buyer and pay those damages finally awarded against Buyer in any suit to the extent that it is based on a claim that Product in the form delivered to Buyer, constitutes an infringement of any valid United States Patent or Copyright provided that (i) Buyer shall notify Ampaway promptly in writing of any claim of infringement, (ii) Ampaway shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, (iii) Buyer shall provide authority, information, and assistance to Ampaway and its counsel for the defense of such claim. Exclusions. Ampaway shall have no liability or obligation to Buyer hereunder concerning any infringement claims based upon (i) compliance with designs, plans, or specifications of Buyer, (ii) use of Products in combination with products not purchased hereunder where the Products would not itself be infringing, (iii) use of Products in an application or environment for which such Products were not designed or contemplated, (iv) modifications to the Products, or (v) any claims of intellectual property right in which Buyer or any affiliate of Buyer has an interest or license. Replacement. If any Product is held to constitute an infringement or its use is enjoined, Ampaway may at its option and its own expense, either (i) procure for Buyer the right to continue using such Product, or (ii) replace such Product with non-infringing Product of equivalent performance, or (iii) modify such Product so that it is non-infringing, or (iv) accept return of such Product less deduction for depreciation, damage and obsolescence. LIMITATIONS OF LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF AMPAWAY WITH RESPECT TO THE INFRINGEMENT OF PATENTS, COPYRIGHTS, AND TRADEMARKS OF ANY PRODUCT DELIVERED UNDER THIS AGREEMENT.
Ampaway may terminate this Price Quotation for convenience in whole or in part, at any time, by verbal and/or written notice by giving five (5) days written notice of such termination. At such time, Ampaway shall cease all related work unless otherwise directed by the Buyer. Ampaway’s termination of this Price Quotation shall not constitute a default. If any deliverable is not delivered within 45 days of its due date, then Buyer may terminate this Contract immediately by giving written notice to Ampaway and will not owe any amount for deliverables that have not been accepted. Ampaway may terminate this Contract immediately if Buyer or any of its agents breach the confidentiality provisions or the indemnity provisions. IN NO EVENT SHALL BUYER BE ENTITLED TO OR AMPAWAY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, GOODWILL, OR PRODUCTION DOWNTIME, EVEN IF AMPAWAY IS ADVISED OF THE SAME. IN NO EVENT WHATSOEVER WILL AMPAWAY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION, WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE LESSOR OF $1,000 USD OR THE AMOUNT ACTUALLY RECEIVED BY AMPAWAY FROM BUYER UNDER THIS PRICE QUOTATION ONLY.
Before the commencement of any work on Buyer’s premises, Ampway represents that it has and shall maintain and shall furnish Buyer with certificates of insurance evidencing worker’s compensation insurance, state disability insurance, and such other insurance as Buyer may reasonably request.
Ampaway Confidential Information means information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, finances, and personal data related to the business or affairs of Ampaway. Ampaway Confidential Information does not include any information i) which Buyer knew before Ampaway disclosed it to Buyer; (ii) which has become publicly known through no wrongful act of Buyer; or (iii) which Buyer developed independently, as evidenced by appropriate documentation. Buyer agrees not to disclose any Ampaway Confidential Information and to take all reasonable precautions to prevent its unauthorized dissemination, both during and after the Contract. Without limiting the scope of this duty, Buyer agrees to limit its internal distribution of Ampaway Confidential Information to its employees and agents who have a need to know and to take steps to ensure that the dissemination is so limited. Buyer agrees not to use any Ampaway Confidential Information for its own benefit or for the benefit of anyone other than Ampaway. Without limiting the scope of this duty, Buyer agrees not to design or manufacture any products, which incorporate Ampaway Confidential Information. All Ampaway Confidential Information remains the property of Ampaway and no license or other rights in the Confidential Information is granted hereby. All information is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding accuracy or performance. Further, upon Ampaway' written request, Buyer agrees to return to Ampaway, all Ampaway Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings and copies thereof
(a) Buyer acknowledges that the Products sold by Ampaway hereunder contain trade secrets and other intellectual property owned or licensed to Ampaway. Ampaway retains for itself all proprietary rights in and to all designs, Products, software, engineering details, and other data pertaining to any Products sold except where rights are assigned under written agreement by an authorized representative of Ampaway. Except for Buyer’s limited right to use Ampaway’s product software (“Product Software”) only with the Product, Ampaway retains all intellectual property rights in and to the Products and any portion thereof (including without limitation any and all Product Software). Any and all Product Software is copyrighted and Ampaway and/or its licensors retain and reserve all title, interest, ownership, and rights in and to all copies of the Product Software and product documentation (including all related intellectual property rights thereto), except for the limited license herein. Buyer will not directly or indirectly engage in, cause or permit the reverse engineering, disassembly recompilation or similar manipulation of the Products. (b) Ampaway may terminate this Agreement as to any Products without liability if Ampaway determines that in its opinion there is any potential intellectual property rights infringement resulting from Buyer's or End User’s use of the Products or its incorporation of Products in equipment used by Buyer or End User.
Ampaway acknowledges that from time to time Ampaway may have its own and/or third-party intellectual property rights, which Ampaway wishes to incorporate or utilize into the Work Product or has incorporated into the Software Product Software or Products subject to this Contract ("Ampaway's Related Rights"). If and only if Ampaway has the right to grant licenses to third parties, then Ampaway hereby grants Buyer, and its subsidiaries and affiliates, a royalty-free, worldwide, non-sublicensable, non-exclusive license to use Ampaway's Related Rights only as part of the Product in which the Ampaway Related Rights have been incorporated or for which it has been delivered. Ampaway’s Software Product and/or software/hardware product to be provided to the Buyer for use by the Buyer includes open-source code and freeware. Notwithstanding the foregoing, under no circumstances whatsoever does Ampaway grant any right, title or interest in and to any of Ampaway’s patents or patent applications. Third party software incorporated into the products is subject to separate license restrictions and related terms and conditions and the buyer’s use of such software is subject in every case to all such terms and conditions. The current restrictions and related terms and conditions are set forth in Ampaway’s Important Notices and System Specifications document. Ampaway is not liable for any acts, errors, or omissions of Buyer or any third party with respect to Open-Source Software. Any and all Product Software licensed in this Contract is “commercial computer Software” and ‘commercial computer Software documentation” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any license, use reproduction, release, performance, display, or disclosure of the product software and accompanying documentation by the US Government is governed solely by the terms of this Contract and is prohibited except to the extent expressly permitted by the terms of this Contract.
Ampaway will not be reimbursed for any expenses incurred in connection with the performance of services under this Contract, unless approved in advance and in writing by the Buyer’s technical monitor, or as expressly provided for in the Contract statement of work. Ampaway shall utilize standard coach airfare, mid-size automobile rental, and Holiday Inn or equivalent hotel accommodations, unless authorized by Buyer to the contrary; and agrees to make its own reservations for such, utilizing such Ampaway discounts which may be available.
Ampaway warrants title to all goods sold and services supplied.
Ampaway warrants, for 30 days from the date the products are delivered to the carrier (the “Warranty Period”), that all Products and/or Services will materially conform to the then-current specifications written by Ampaway. In the event of a non-conformity during the Warranty Period, Buyer shall promptly notify Ampaway by generally describing the nature of the non-conformity in writing. Return of non-conforming Products must be made according to Ampaway’s then-current return and RMA (Returned Merchandise Authorization) policies, including returning the Product with a proper RMA authorization. If Ampaway does find a non-conformity under this warranty, at Ampaway’s option and election and as Buyer’s exclusive remedy, Ampaway will repair or replace the Product. OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 17, Ampaway MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE. Ampaway SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. Ampaway DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR IN THE COMBINATIONS OR APPLICATIONS INTENDED BY ANY THIRD PARTY.
IN NO EVENT SHALL AMPAWAY BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY RESELLER, OR FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES, HOWEVER, CAUSED AND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER OR NOT AMPAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS EXCLUSION INCLUDES ANY LIABILITY, THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST THE BUYER. IN NO EVENT SHALL AMPAWAY’S LIABILITY ARISING OUT OF THIS PURCHASE QUOTE EXCEED THE PURCHASE PRICE OF THE PRODUCTS PAID BY THE BUYER TO AMPAWAY AND SUBJECT TO THIS PURCHASE QUOTE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. THE PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF AMPAWAY ARISING OUT OF THIS CONTRACT AND/OR SALE OF PRODUCTS TO RESELLER AND END USERS, AND THE PARTIES EXPRESSLY AGREE WITH THE RESULTING ALLOCATION OF RISK.
Ampaway is an independent contractor and, not an employee of Buyer. No employment relationship is created by this Contract for contracted services, and Ampaway is not a Buyer’s employee and is ineligible for any of Buyer’s employee benefits. Buyer acknowledges it is not eligible to receive, and expressly waives any and all rights or entitlement to Ampaway-provided benefits. Ampaway shall retain independent, professional status throughout this Contract and shall use its own discretion in performing the tasks assigned
a) Equitable Relief. Any breach of the confidentiality provisions of this Contract by Buyer will result in irreparable harm to Ampaway. Buyer therefore agrees that Ampaway shall have the right to an injunction or other equitable relief to enforce this Contract and any of its provisions, without prejudice to any other rights and remedies that Ampaway may have; (b) Compliance with Laws and Regulations. Buyer agrees to comply with all applicable federal, state, and local laws, rules, regulations, and ordinances; (c) Governing Law; Severability. California law shall govern and enforce this Contract. Any litigation or arbitration between the parties shall take place in Los Angeles County, California; both parties waive any objection to personal jurisdiction or venue in any forum located in that County. If any provision of this Contract is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Contract shall continue in full force and effect; (d) Arbitration. At the option of either party, any dispute arising from or with respect to this Contract shall be decided by arbitration in accordance the American Arbitration Association Commercial rules but neither party shall use the American Arbitration Association as the arbitrator(s). At the request of either party, the proceedings will be conducted in secrecy. Under no circumstances will the Buyer be awarded attorney fees. The parties shall pay their own costs of arbitration; (e) Advertising / Publicity Releases. The terms and existence of this Contract and everything supplied in connection with it by Ampaway shall be held in confidence by Buyer. Buyer shall not in any manner, advertise, publish or release any information concerning this Price Quotation, or any portion thereof, without the prior written consent of Ampaway. Buyer shall not use Ampaway’s name in any way, including without limitation, a general or sample listing of Ampaway’s customers, without Ampaway’s prior written consent. This Contract does not grant or confer any right to use any trademark, trade name, logo, service mark, or other mark of Ampaway or its affiliates, in any advertising, publications, promotional activities, or for any other purpose. Any violation of this paragraph shall be deemed a material breach (f) Survival of Terms. The provisions of paragraphs 12, 13, 15, 16, and 20 hereof shall survive termination of this Contract; (g) Complete Understanding; Modification: This Contract and the attached exhibits constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter. Any waiver, modification, or amendment of any provision of this Contract shall be effective only if in writing and signed by the parties. The provisions of this Contract shall prevail over any conflicting provisions in a purchase order, acceptance notice, or other document.